On Tuesday at 9:30 a.m., the U.S. Supreme Court will hear oral argument in Department of Homeland Security v. Regents of the University of California. Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals (DACA) policy is judicially reviewable; and (2) whether DHS’s decision to wind down the DACA policy is lawful.

Jonathan Blitzer writes at the New Yorker, The Trump Administration’s Plot to End DACA Faces a Supreme Court Test (excerpt):


On Tuesday, after two years of wrangling in the federal courts, the Supreme Court will hear a suite of cases challenging the Trump Administration’s decision to cancel DACA. A team of lawyers from the firm Gibson, Dunn & Crutcher, along with several groups of DACA recipients, advocates, universities, and multiple states nationwide, will argue that the President ended DACA without properly considering the impact the decision would have on its seven hundred thousand recipients and their families—more than a million people in total. A federal statute called the Administrative Procedures Act requires the government to provide transparent and substantial reasons for adopting public policies, whereas the Trump Administration, these groups have argued, acted in an “arbitrary and capricious” way, a violation of the law.

In the months before the August 24th White House meeting [of Trump administration officials], a group of ten Republican state attorneys general, working in close coordination with Sessions, Miller, and Hamilton, wrote a letter to the Justice Department threatening to sue the government unless it ended DACA.  [State attorney generals from Texas, Arkansas, Alabama, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Tennessee and West Virginia signed the letter, as well as Idaho Governor Butch Otter.] It wasn’t clear that the attorneys general would follow through with an actual lawsuit; nor was it assured that they could win in court. But their threat served as a pretext for Sessions to intercede. At the White House, Sessions and the other immigration hard-liners laid out their plan. According to a record of the meeting, a Justice Department memo “outlining the legal reasons that the DACA program is unlawful” would be sent to D.H.S. by September 1st. D.H.S., in turn, would “draft a memorandum” to effectively end the DACA program. The Republican state attorneys general threatening to sue would “dismiss” their case by September 5th. Meanwhile, the Administration would “develop a unified list of legislative items” for the President to bring to Congress to force an exchange: if Congress took up the President’s legislative priorities on immigration (increasing ice enforcement and building a wall along the southern U.S. border), then Trump would “consider signing legislation that addresses individuals who had previously been eligible to receive DACA permits.”

The authors of DACA in the Obama Administration were aware that the program would draw intense scrutiny. Janet Napolitano, who was the secretary of D.H.S. when the program was adopted, told me, “It was done with the assumption that, somewhere along the line, somebody was going to try to stop it.” In early 2012, teams of lawyers at the White House and Department of Homeland Security examined every aspect of the policy, and, according to an analysis by the Office of Legal Counsel, found it to be consistent with a well-established concept in criminal and immigration case law known as prosecutorial discretion. Every Presidential Administration since Eisenhower’s has extended reprieves from deportation, known as deferred action, to certain categories of undocumented immigrants who are considered low priorities for arrest. Since 1981, federal regulations explicitly authorized such immigrants to work in the United States.

DACA came with an additional slate of eligibility requirements. Recipients, for instance, had to be either a student, a high-school graduate, or a member of the armed forces, and they couldn’t have a criminal record. “We made sure that the process that we set up for qualifying young people for DACA was designed to do a case-by-case evaluation, that it wasn’t just a blanket grant of immunity from deportation,” Napolitano said. If applicants met the criteria, they could renew their DACA status every two years, allowing them to work, apply for bank loans, and qualify for financial aid to go to college. Often, this afforded stability not just for individual recipients but for their entire families. Luis Cortes, one of the attorneys who will be defending DACA at the Supreme Court on Tuesday, told me, “There are DACA recipients who are taking care of their parents. They have more stable jobs because they can get Social Security numbers. Some of them have committed to mortgages. They have siblings or kids.”

* * *

The Trump Administration has offered a shifting set of explanations for the cancellation of DACA. On September 5, 2017, the President claimed that “the program is unlawful and unconstitutional and cannot be successfully defended in court.” That same day, in his own announcement, Sessions said, without citing any evidence, that DACA had encouraged illegal immigration. In court, the Administration argued that its rationale for ending DACA was to address the threat of a lawsuit by the Republican state attorneys general. After a string of losses in the federal courts, the Administration issued an additional policy rationale, in a document called the Nielsen Memorandum: ending DACA, it said, sent a “message” to discourage future immigrants from travelling to the border. “This case is not about whether the government can ever end DACA or some other program,” Trudy Rebert, a staff attorney at the National Immigration Law Center, which also filed suit to block the Administration’s cancellation of DACA, told me. “It’s about whether they did so lawfully—and, specifically, whether they did so in an ‘arbitrary and capricious’ manner or undertook reasoned decision-making. Agencies have a lot of power. Their decisions affect a lot of people’s lives, and these basic legal requirements are intended to insure some measure of accountability.”

For all the Administration’s evolving arguments, the White House meeting held on August 24, 2017, remains significant. Lawyers for the government have insisted that Elaine Duke, a career civil servant who’d been in charge of D.H.S. for less than a month, exercised her own discretion in ending DACA and that, as a result, the courts could not review or override the decision. She had arrived at the meeting thinking that it would be a policy discussion, Hirschfeld Davis and Shear report in “Border Wars.” Miller never told her that the true purpose of the gathering was to set in motion DACA’s cancellation, a move that Hirschfeld Davis and Shear described as a “procedural ambush.” The government’s own record of the meeting, Rebert told me, undercuts the Administration’s subsequent claims that Duke had made the decision after a thorough consideration of the policy. “It’s clear here that the decision to end DACA was made on August 24th,” Rebert said. The process was “not that Secretary Duke got a letter from Attorney General Sessions and then independently decided to end DACA.” Duke’s memo provides no actual policy reasons for ending DACA; it simply restates Sessions’s claim that DACA was unlawful. If cancelling the program was a foregone conclusion, and Duke’s memo merely served as a rubber stamp, then, as a matter of public policy, the government cannot claim to have acted in good faith.

* * *

There are a few potential outcomes at the Supreme Court. One is that the Justices rule directly on the lawfulness of the Administration’s cancellation of DACA. The Court could also provide instructions for how the government would have to cancel DACA if it wanted to do so lawfully. And, at the same time, the Court could even adopt a more sweeping stance on whether a policy like DACA is lawful in the first place.

Supreme Court reporter Linda Greenhouse at the New York Times adds, The Supreme Court Confronts DACA (excerpt):

In the four months since the Supreme Court rejected the Trump administration’s cynical effort to add a citizenship question to the 2020 census, the decision — which the president came dangerously close to defying — has faded from view under the weight of all that has happened since. The census will proceed next spring in the usual way, without sorting the country’s population into citizen and noncitizen. That’s that, it would seem.

But the decision’s work is not done. [This] Tuesday, the Supreme Court will hear arguments on the validity of President Trump’s decision to terminate the program that shields hundreds of thousands of young undocumented immigrants — the Dreamers — from deportation and allows them to live openly in American society. Chief Justice John Roberts’s 5-to-4 majority opinion in the census case, Department of Commerce v. New York, is playing an important although largely unnoticed role in how advocates are framing their arguments about the fate of the program, Deferred Action for Childhood Arrivals, known as DACA.

The court’s eventual decision in the case, Department of Homeland Security v. Regents of the University of California, is obviously of vital importance to the young people who in the seven years since DACA began have been able to study, work legally and start families. But the decision will also be important in defining the court’s relationship to a president who behaves as if he has the Supreme Court in his pocket. It will indicate whether the Roberts court — more specifically, the chief justice himself — will continue to insist on believable explanations from an administration that often appears incapable of giving one.

The parallels between the two cases aren’t exact, but they are striking. Adding the citizenship question to the census was part of the Republican strategy to suppress the response in immigrant-heavy communities and skew the data that feeds into redistricting. When challenged, the Commerce Department claimed it needed the citizenship information to help the Justice Department better enforce the Voting Rights Act, an explanation that Chief Justice Roberts said “seems to have been contrived.” It was, he observed, “incongruent with what the record reveals about the agency’s priorities and decision making process.”

The chief justice’s opinion made it clear that the court was addressing process, not substance: “We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decision making under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”

“Reasoned decision making” was glaringly absent from the administration’s rollout of the decision to terminate DACA.

* * *

Groups of plaintiffs across the country filed lawsuits, promptly winning rulings from Federal District Courts in New York, Washington, D.C., and San Francisco. All three courts found that the repeal was “arbitrary and capricious” in violation of the Administrative Procedure Act. The court in Washington offered the secretary of Homeland Security, who by then was Kirstjen Nielsen, the chance to elaborate on the reasoning that the court found deficient. She reiterated that DACA was “contrary to law,” adding that the department was justified in revoking it proactively to avoid “the threat of burdensome litigation that distracts from the agency’s work.” Further, she said, it was “critically important” for her department “to project a message that leaves no doubt regarding the clear, consistent and transparent enforcement of the immigration laws against all classes and categories of aliens.” Those reasons, the court found, were no more satisfactory than the initial rationale.

As with the census case, the DACA case (actually three cases combined into one administration appeal) reaches the Supreme Court as a question of procedure, not substance. No one is arguing that DACA must remain a permanent fixture of immigration law. The issue is whether the administration handled its termination in a manner consistent with basic principles of administrative law.

“The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offered genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public,” asserts the brief for New York and the 15 other states that joined it as plaintiffs. That sentence is a quotation from Chief Justice Roberts’s opinion in the census case.

The administration’s core argument is that the decision to end DACA is not reviewable in court in the first place, that it is the type of decision that is “committed to agency discretion” and so not open to challenge under the Administrative Procedure Act. As the plaintiffs’ briefs point out, that is a strange argument, because if the administration is right that DACA was illegal from the start, then ending it is a matter of legal compulsion rather than discretion; in any event, legality is quintessentially a question for judges.

It’s hardly a surprise that the administration’s brief barely mentions the chief justice’s census opinion, cherry-picking a few quotations that, lacking context, appear to run counter to the opinion’s ultimate conclusion. But that’s not to say there is silence about the census case on the administration’s side of the argument. Three conservative legal scholars have filed a brief that can only be called a Dear John letter — as in John Roberts. The thrust of the brief, written by Ronald Cass and filed on behalf of himself, Christopher DeMuth Sr. and James Huffman, is that the chief justice’s census opinion was an unfortunate one-off that should have no bearing whatsoever on future cases. (Although this brief is labeled rather coyly as “in support of neither party,” the three concede that “our analysis generally accords with arguments favorable” to the administration.)

The chief justice’s conclusion that the official reason for the citizenship question was a pretext was a “peculiar ground for decision” that “threatens to greatly expand the occasions for inquiry into the motives of administrators,” Mr. Cass, a former dean of the Boston University School of Law, writes in the brief. That would be “a change that would invite challenges that almost certainly would enmesh courts in the very sort of inquiries that this court warned against” in cases dating to the 1930s (an odd baseline, since the Administrative Procedure Act was not enacted until 1946). The court should adhere to its “traditional reluctance to examine the motives of administrative decision makers exercising legally granted authority,” the brief continues, given the “threat to constitutionally separated powers if reviewing judges seek to plumb the motives of officials in coequal branches of government.”

But the chief justice can redeem himself, the brief implies, by isolating his census opinion so that it can’t infect other cases. The brief claims that whether the census decision actually leads to disaster “depends critically on whether this court views that decision as setting a pattern for a broad set of cases or as addressing a truly exceptional situation.”

And that’s really the question on the table, it seems to me. Something is indeed exceptional, but what?

Is it the census case, with its ham-handed lies by the secretary of commerce and the late-breaking revelation of a Republican operative’s real game plan? Or the notion that with a wave of a hand, the president or the henchmen who do his immigration handiwork can eject some 700,000 productive young people from the only home most of them have ever known? Or is it the Trump administration itself that is truly exceptional — and if so, what is the Supreme Court going to do about it?

We will get a sense of what the Court may do from oral argument on Tuesday. But as always, I caution you against reading too much into oral argument as a predictor of how the court will rule.